Several tobacco makers sued in August 2009 to block the restrictions. Judge McKinley agreed that the ban on color and graphics in labels and advertising that children might see intruded too broadly on commercial free speech.

He noted that, instead, Congress could have exempted certain types of color and graphic images. Judge McKinley did uphold the authority of the U.S. Food and Drug Administration (FDA) to restrict tobacco marketing, as well as a specific provision which requires new, graphic warning labels to cover the top half of cigarette packages.

In fact, he upheld most of the new marketing restrictions, including a ban on tobacco companies sponsoring athletic, social and cultural events or offering free samples or branded merchandise.

Lawyers on both sides affirmed that this case will probably be appealed to the U.S. Court of Appeals for the Sixth Circuit and eventually to the Supreme Court.

President Obama has nominated his Solicitor General, Elena Kagan, to be the next Supreme Court Justice. If confirmed, she would fill the seat being vacated by Justice John Paul Stevens upon his retirement. Prior to her term as Solicitor General, Ms. Kagan wrote pieces analyzing free speech jurisprudence.

This report explains Ms. Kagan’s articles in detail, as well as an additional, shorter piece, discussing the First Amendment implications of codes of conduct at public universities: (1) “The Role of Government Motive in First Amendment Doctrine”: The Concept, and Doctrine, of Impermissible Motive; (2) “Regulation of Hate Speech and Pornography After R.A.V.”; (3) “When a Speech Code is a Speech Code: The Stanford Policy and the Theory of Incidental Restrictions.”